Wayne Butts v. Harold Clarke

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6037
WAYNE D. BUTTS,
Plaintiff – Appellant
v.
HAROLD W. CLARKE, Director of the Virginia Department of
Corrections,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Lawrence Richard Leonard,
Magistrate Judge. (2:12-cv-00210-MSD-LRL)
Submitted: March 26, 2013 Decided: March 29, 2013
Before DUNCAN, FLOYD, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Wayne D. Butts, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wayne D. Butts seeks to appeal the magistrate judge’s
orders denying his request to proceed in forma pauperis as to
his 28 U.S.C. § 2254 petition, and his subsequent motion for
reconsideration. This court may exercise jurisdiction only over
final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory
and collateral orders, 28 U.S.C. § 1292 (2006); Fed. R. Civ. P.
54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-
46 (1949). Absent both designation by the district court and
consent of the parties, 28 U.S.C. § 636(c) (2006), a magistrate
judge lacks authority to issue dispositive orders. See 28
U.S.C. § 636(b) (2000); Colorado Bldg. & Constr. Trades Council
v. B.B. Andersen Constr. Co., 879 F.2d 809, 811 (10th Cir. 1989)
(appellate court has no jurisdiction over magistrate's order
unless district court designates such authority to magistrate or
parties consent); Gleason v. Sec’y of Health & Human Serv., 777
F.2d 1324 (8th Cir. 1985); see also United States v. Bryson, 981
F.2d 720, 723-26 (4th Cir. 1992) (discussing magistrate judge’s
authority to rule on 28 U.S.C. § 2255 (2000) motion); United
States v. Flaherty, 668 F.2d 566, 585 (1st Cir. 1981)
(magistrate judge authorized to make only determinations that do
not constitute final judgments). Because it does not appear
from the record that the parties have consented to the authority
of the magistrate judge, and no other basis for immediate review
2
exists at this time, the magistrate judge’s orders are
interlocutory orders not subject to appellate review in this
court. Accordingly, we deny leave to proceed in forma pauperis
and dismiss the appeal for lack of jurisdiction. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
DISMISSED
3